Drug Developments: Legislation, Use, Testing, and Trends

2018 was a headlining year, paving the way for many developments and new legislation in the fields of recreational and medicinal drug use, drug testing, and drug use in the workplace. Most notably, these developments have centered around the legalization of marijuana for both medicinal and recreational use in several states. In this paper, we will focus on these new developments and legislation, their impact at the state and federal levels, and how they have/are affecting the workplace.

We will specifically be covering the following topics:

Marijuana legislation

DOT laws regarding marijuana legislation

The federal government’s actions

The effect of legalized marijuana for recreational use

The anticipated trends of drug use throughout 2019

Marijuana Legislation

Right now, marijuana is a controlled substance, according to the FDA (Federal Drug Administration). However, each state can determine the way marijuana is used within that state. In 2018, 33 states and the District of Columbia passed laws that allowed for broadly legalizing marijuana in some form. The District of Columbia, and these 10 states – Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington – have legalized marijuana for recreational use in 2018. Most other states (46 in total), including Louisiana and West Virginia, have legalized marijuana for at least medicinal use; although, the conditions for which medicinal marijuana may be used, when, and how all vary from state to state. For example, Louisiana only allows for cannabis-infused products, such as oils and pills. Some other states have similarly passed legislation that calls for decriminalization of marijuana but does not legalize retail sales – yet.

The way each state determines how marijuana legislation is passed varies as well, from ballot measures to a legislative process. As an example, in 2018, Vermont became the first state to legalize marijuana for recreational use through the legislative process. The state’s law now allows for adults age 21 and over to grow and possess small amounts of marijuana. But it does not permit the sale of nonmedicinal marijuana. Michigan, however, became the latest state to legalize recreational marijuana through a ballot measure, allowing adults age 21 and over to both purchase and possess recreational-use marijuana.

The map image below refers to current state laws and recently approved ballot measures legalizing marijuana for recreational or medicinal use, from Governing.com.

DOT Laws Regarding Marijuana Legislation

Now that we know and understand how marijuana legislation is passed, and how legislation varies from state to state, one of the most common questions that arises is how the state and federal governments will handle laws on the road – Impairment, possession, and use. As you might expect, from state to state, how marijuana is handled on the roads will vary. Some states plan to use blood tests to determine if an individual is impaired at the time they are pulled over, although, exactly how and when such tests will be implemented has yet to be determined.

We can look to Colorado for guidance, a state that has already passed and measured recreational marijuana use and laws surrounding it since 2012. In Colorado, using marijuana before driving can lead to arrest for a driving under the influence (DUI) charge. The state has an impairment level, just like alcohol: Drivers with 5 nanograms of delta-9 tetrahydrocannabinol (THC) per milliliter of whole blood can be prosecuted for DUI. Even if marijuana is used for medicinal purposes, officers can still make an arrest. Neither drivers nor passengers are allowed to open any marijuana packaging and use the product while in a vehicle. And, unsurprisingly, leaving the state with any marijuana product is illegal. Marijuana products also may not be taken to or used in federal parks or on federal land.

As such, the federal government and the Department of Transportation (DOT) have their own laws as it pertains to marijuana. In fact, DOT laws take precedence over state laws when it comes to marijuana use. For instance, if an employee in a state where recreational marijuana is legal is involved in a motor vehicle accident while on the job and tests positive for marijuana, he or she will be subject to consequence. Since marijuana is still illegal under federal law, all “safety sensitive” employees who are subject to federally mandated drug testing are prohibited from using marijuana. These employees are not even allowed to have marijuana in their system at any time, because marijuana is classified as a Schedule I Drug by the United States Controlled Substances Act. This group of employees can include anyone who operates commercial vehicles, like trains, planes, and school buses. Any employee falling under this group who tests positive marijuana should be immediately removed from their job and be required to work with a Substance Abuse Professional to complete the Return to Duty process in order to regain eligibility to return to work.

The DOT has upheld its stance on marijuana use ever since Washington and Colorado legalized recreational marijuana use back in 2012. In a statement, the DOT has said:

“We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.”

The Federal Government’s Actions

As for predicting the federal government’s actions regarding recreational and medicinal marijuana use, it seems unlikely that either will be legalized any time soon. The Controlled Substances Act, referenced above, does not even recognize the difference between recreational and medicinal use. Under federal law, marijuana is treated just like any other controlled substance, like heroin or cocaine. Being a Schedule I Drug, this means that marijuana is viewed and treated as highly addictive and having no medical value. More so, doctors may not “prescribe” marijuana for medical use under federal law; however, marijuana use can be “recommended,” as protected by the First Amendment.

Anyone who should violate federal law is subject to punishment. Those who are found guilty have often received very steep punishments. Medical issues cannot be used as a defense, as it has already been ruled against in several federal cases. Currently, there are two types of federal sentencing laws. The first is sentencing guidelines, enacted by the US Sentencing Commission, which take into account the amount of marijuana possessed as well as past convictions. The second is mandatory sentencing laws, enacted by Congress, which require mandatory minimum sentences as introduced in the 1986 drug bill.

At this point, there is some degree of conflict between the states and the federal government as it pertains to marijuana laws. In the case of Gonzales v. Raich (2005), the US Supreme Court held that the federal government has the constitutional authority to prohibit marijuana for all purposes. However, the Raich decision does not state that the laws of California and any other state with marijuana laws are unconstitutional, nor does it overturn laws permitting marijuana use.

States have recognized marijuana’s medical value and have either passed laws through their legislatures or adopted them by initiative. In support of the numerous states that have taken responsibility for the health and welfare of their people, and have implemented medical marijuana laws, ASA is fighting for states’ ability and right to pass and enforce their own laws, regardless of federal law.

The Effects of Legalized Marijuana for Recreational Use

Under this section, we will again examine Colorado, a state that has successfully passed medicinal and recreational marijuana use as well as the retail sale of marijuana products as of 2012. Colorado has also implemented laws that determine factors such as road laws, legal amounts for possession, travel laws, types of marijuana, home growers, licensees, etc. Furthermore, Colorado has been able to measure the effects over the past seven years of legalization.

Colorado

Overview – Colorado has legalized medicinal and recreational marijuana use. Use, buying, and selling extends to adults over the age of 21. A valid ID is required to prove age. Retail marijuana is only to be purchased from licensed retail stores. Adults of age are allowed to buy and possess up to 1 ounce of marijuana at a time. It is important to note that the public use of marijuana is still illegal. Use includes smoking, eating, and vaping. Adults of age can use it on private property. The use of marijuana in/on rental or hotel properties can be determined by the property owners. Employment decisions are still left to the employer, who can enforce workplace policies and make decisions based on drug testing results, despite legalization. Driving under impairment is illegal, and offenders will be subject to blood testing to determine impairment levels. Traveling with marijuana products beyond state lines is illegal. For a complete list of laws and information regarding marijuana use in Colorado, visit this website.

Economic Impact – Between 2015 and 2018, the state of Colorado has enjoyed $27 million in medical sales tax, $46 million in retail sales tax, $45 million in retail special tax, $18 million in state share back, $10 million in medical licensing fees, and $9 million in retail licensing fees. The additional revenue primarily funds education and the general fund. To put those revenue amounts in perspective, in total, the Colorado Department of Education received $90.3 million in marijuana tax revenue for the 2017-18 school year The year 2017 proved to be high in terms of revenue. Between 2010 and 2018, Colorado has seen a total of $1.4 billion in medical gross sales and another $1.4 billion in retail gross sales. Retail marijuana outlets have led to a 6% increase in property values, contrary to the popular fear that such outlets would decrease property values. As of March 2018, the marijuana industry currently employs about 17,821 full-time equivalent staff, a 17.7 percent increase in employment over the previous year. Besides just impacting residents of Colorado, the state’s tourism rate increased by 51% and an average of $6.5 million since 2014.

The Anticipated Trends for Drug Use Throughout 2019

It is no surprise that based on the 2018 marijuana legislation in the US and elsewhere (ex: Canada legalized marijuana recreational use nation-wide), we expect more states to follow suit in 2019. This will inevitably lead to marijuana use on the rise throughout this year. The most anticipated states to pass some form of marijuana legislation include Connecticut, Illinois, Minnesota, New Hampshire, New Jersey, New Mexico, New York, and Rhode Island.

Kratom – a psychoactive opioid a tropical tree native to southeast Asia. Kratom is often used to reduce pain and improve mood, like many other opioids, but it comes with some high risks, like salmonella outbreaks due to products containing the opioid. Since then, most states have outlawed Kratom, but trends indicate that drug users are still seeking it out in 2019.

E-cigarettes and vapes continue their rise through this year, too. This is especially true among young adults and teens. The FDA warns that vaping contains nicotine and other addictive substances and that many teenagers who used a vaping device were unaware that their device contained nicotine. The FDA is currently working to ensure that teens cannot have access to nicotine or vaping, citing violations among many e-cigarette retailers for their marketing tactics.

Synthetic marijuana – AKA K2/Spice is increasing in popularity. Although it has marijuana in its name, don’t confuse K2 or Spice with the substance we’ve been referencing throughout this paper. Synthetic marijuana contains man-made mind-altering chemicals that come in liquid form. Users have been reported to have overdosed using synthetic marijuana since 2015, yet it remains widely popular and easy to access among young adults and teens.

Fentanyl-laced heroin and cocaine remains at large and providing the most risk to its users. Fentanyl is a narcotic and is the most potent painkiller on the market. It is being used to lace heroine, cocaine, and other “fake” prescription drugs. Since fentanyl is far more potent than the substances it is used for lacing, fentanyl has been related to a surge of fatal overdoses and is only expected to increase in 2019.